[Senate Hearing 116-414]
[From the U.S. Government Publishing Office]
S.Hrg. 116-414
MODERNIZING THE ENDANGERED SPECIES ACT: LEGISLATIVE HEARING ON S. 4589,
THE ENDANGERED SPECIES ACT AMENDMENTS OF 2020
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
----------
SEPTEMBER 23, 2020
----------
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
MODERNIZING THE ENDANGERED SPECIES ACT: LEGISLATIVE HEARING ON S. 4589,
THE ENDANGERED SPECIES ACT AMENDMENTS OF 2020
S. Hrg. 116-414
MODERNIZING THE ENDANGERED SPECIES ACT: LEGISLATIVE HEARING ON S. 4589,
THE ENDANGERED SPECIES ACT AMENDMENTS OF 2020
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 23, 2020
__________
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
43-458 PDF WASHINGTON : 2021
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma THOMAS R. CARPER, Delaware,
SHELLEY MOORE CAPITO, West Virginia Ranking Member
KEVIN CRAMER, North Dakota BENJAMIN L. CARDIN, Maryland
MIKE BRAUN, Indiana BERNARD SANDERS, Vermont
MIKE ROUNDS, South Dakota SHELDON WHITEHOUSE, Rhode Island
DAN SULLIVAN, Alaska JEFF MERKLEY, Oregon
JOHN BOOZMAN, Arkansas KIRSTEN GILLIBRAND, New York
ROGER WICKER, Mississippi CORY A. BOOKER, New Jersey
RICHARD SHELBY, Alabama EDWARD J. MARKEY, Massachusetts
JONI ERNST, Iowa TAMMY DUCKWORTH, Illinois
CHRIS VAN HOLLEN, Maryland
Richard M. Russell, Majority Staff Director
Mary Frances Repko, Minority Staff Director
C O N T E N T S
----------
Page
SEPTEMBER 23, 2020
OPENING STATEMENTS
Barrasso, Hon. John, U.S. Senator from the State of Wyoming...... 1
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 2
WITNESSES
Gordon, Hon. Mark, Governor, State of Wyoming.................... 6
Prepared statement........................................... 11
Response to an additional question from:
Senator Inhofe........................................... 18
Senator Carper........................................... 19
Priddy, Aliese, Owner and Operator, JB Ranch..................... 26
Prepared statement........................................... 29
Response to an additional question from Senator Inhofe....... 33
Clark, Jamie Rappaport, President and CEO, Defenders of Wildlife. 34
Prepared statement........................................... 36
Responses to additional questions from:
Senator Carper........................................... 45
Senator Markey........................................... 47
ADDITIONAL MATERIAL
Letter to:
Senators Barrasso and Carper from the Southern Maryland
Audubon Society and the Audubon Naturalist Society,
September 23, 2020......................................... 54
Senators Barrasso and Carper from the Alaska Wilderness
League Action et al., September 23, 2020................... 56
Senators Barrasso and Carper from the National Wildlife
Federation, September 23, 2020............................. 72
Senators Barrasso and Carper from the National Wildlife
Federation, September 23, 2020............................. 75
Senators Barrasso and Carper from the National Wildlife
Federation, June 14, 2019.................................. 77
Senators Barrasso and Carper from the Environmental Defense
Fund, September 21, 2020................................... 80
Senators Barrasso and Carper from the National Audubon
Society, September 22, 2020................................ 82
Senators from the National Parks Conservation Association,
September 21, 2020......................................... 84
Senators from the National Parks Conservation Association,
September 8, 2020.......................................... 86
Senators Barrasso and Carper from the Delaware Ornithological
Society, September 23, 2020................................ 88
Senator Carper from Delaware Wild Lands, October 5, 2020..... 91
Senator Carper from the Delaware Nature Society, October 7,
2020....................................................... 93
Senator Carper from the Christian Council of Delmarva,
September 15, 2020......................................... 94
Senators Barrasso and Carper from the State of Delaware
Department of Natural Resources and Environmental Control,
received October 2, 2020................................... 96
Senator Carper from Delaware State Senator Stephanie Hansen,
September 22, 2020......................................... 98
Senator Carper from the American Birding Association, October
6, 2020.................................................... 100
Senators Barrasso and Carper from the Center for Biological
Diversity, September 9, 2020............................... 101
Senators Barrasso and Carper from the International Fund for
Animal Welfare, September 23, 2020......................... 141
Senator Barrasso from the Montana Wildlife Federation,
September 4, 2020.......................................... 143
Montana Grizzly Bear Advisory Council from the Natural
Resources Defense Council, April 8, 2020................... 145
Montana Grizzly Bear Advisory Council from the Natural
Resources Defense Council, June 26, 2020................... 153
Written testimony of Dr. Jane Goodall, DBE, Founder, the Jane
Goodall Institute and UN Messenger of Peace, September 23, 2020 180
Bear spray saves lives, the Humane Society of the United States.. 182
Statement for the record, New England Aquarium, September 23,
2020........................................................... 203
Testimony to the Senate Committee on Environment and Public Works
on the Grizzly Bear State Management Act from the Humane
Society Legislative Fund and the Humane Society of the United
States, September 9, 2020...................................... 207
Testimony to the Senate Committee on Environment and Public Works
on the Grizzly Bear State Management Act from Chuck Neal,
September 21, 2020............................................. 210
Testimony to the Senate Committee on Environment and Public Works
on the Grizzly Bear State Management Act from Franz J.
Camenzind, Ph.D., September 21, 2020........................... 211
Testimony on the Grizzly Bear State Management Act from the Rocky
Mountain Tribal Leaders Council, September 9, 2020............. 216
Letter to Senator Barrasso from:
The Wyoming Game and Fish Department, September 14, 2020..... 219
The Wyoming Stock Growers Association, September 16, 2020.... 220
The Wyoming Farm Bureau Federation, September 18, 2020....... 222
The Wyoming Association of Conservation Districts, September
18, 2020................................................... 224
The Arizona Game and Fish Commission, October 7, 2020........ 226
The American Sheep Industry Association et al., September 23,
2020....................................................... 233
The Intermountain Forest Association, September 20, 2020..... 236
The United Water Conservation District, September 21, 2020... 237
The American Farm Bureau Federation, September 22, 2020...... 239
The American Forest Resource Council, September 24, 2020..... 241
The Association of Fish and Wildlife Agencies, September 21,
2020....................................................... 243
The Associated General Contractors of America, September 22,
2020....................................................... 245
The American Loggers Council, September 18, 2020............. 246
The American Road and Transportation Builders Association,
September 22, 2020......................................... 248
The American Exploration and Production Council, September
23, 2020................................................... 249
The Black Hills Regional Multiple Use Coalition, September
20, 2020................................................... 250
The Campbell County Board of Commissioners, September 17,
2020....................................................... 251
The Colorado Farm Bureau, September 17, 2020................. 252
The Florida Farm Bureau Federation, October 1, 2020.......... 253
Court Boice, Curry County Oregon Commissioner, September 19,
2020....................................................... 255
The Deschutes Basin Board of Control, September 21, 2020..... 256
The Elephant Butte Irrigation District of New Mexico,
September 16, 2020......................................... 258
The Family Farm Alliance, September 22, 2020................. 260
The Florida Forestry Association, September 24, 2020......... 262
The Hardwood Federation, September 16, 2020.................. 263
Healthy Forests, Healthy Communities, September 15, 2020..... 264
The Idaho Water Users Association, September 15, 2020........ 265
The Independent Petroleum Association of America, September
21, 2020................................................... 267
Iron County, Utah, September 15, 2020........................ 268
The Mohave County Board of Supervisors, September 17, 2020... 270
The Klamath Water Users Association, September 22, 2020...... 272
The La Paz County Board of Supervisors, September 21, 2020... 274
The Land Conservation Assistance Network, September 2020..... 277
The State of Mississippi Department of Agriculture and
Commerce, September 17, 2020............................... 279
The Montana Wool Growers Association, September 16, 2020..... 281
The Montana Wood Products Association, September 14, 2020.... 286
The National Association of Conservation Districts, September
21, 2020................................................... 288
The National Association of Counties, September 22, 2020..... 290
The National Association of Home Builders, September 22, 2020 292
The National Association of Realtors, September 8, 2020...... 294
The National Association of State Departments of Agriculture,
September 21, 2020......................................... 296
The National Association of State Foresters, September 22,
2020....................................................... 297
The National Cotton Council of America, September 22, 2020... 299
The National Grazing Lands Coalition, August 22, 2020........ 301
The National Aquaculture Association, September 22, 2020..... 302
The State of North Dakota Department of Agriculture,
September 22, 2020......................................... 304
The North Dakota Game and Fish Department, September 22, 2020 305
Neiman Enterprises, Inc., September 23, 2020................. 306
The National Endangered Species Act Reform Coalition,
September 16, 2020......................................... 307
The National Mining Association, September 23, 2020.......... 309
The New Mexico Association of Conservation Districts,
September 21, 2020......................................... 311
The National Rural Electric Cooperative Association,
September 11, 2020......................................... 312
The National Stone, Sand, and Gravel Association, September
23, 2020................................................... 314
The National Wild Turkey Federation, September 22, 2020...... 315
The Colorado Snowmobile Association et al., September 14,
2020....................................................... 317
The Off-Road Business Association et al., September 14, 2020. 322
The Oklahoma Department of Wildlife Conservation, September
18, 2020................................................... 326
Partners for Conservation, September 17, 2020................ 328
The Rocky Mountain Elk Foundation, September 16, 2020........ 329
Safari Club International, September 22, 2020................ 330
The South Carolina Department of Natural Resources, September
22, 2020................................................... 333
The J.R. Simplot Company, September 17, 2020................. 334
The Society for Range Management, October 7, 2020............ 336
The Western Association of Agricultural Experiment Station
Directors, September 16, 2020.............................. 338
The Western Energy Alliance, September 21, 2020.............. 340
The Westlands Water District, October 7, 2020................ 341
The Wisconsin Farm Bureau Federation, September 21, 2020..... 343
The Western Landowners Alliance, September 22, 2020.......... 344
The Wyoming Water Development Office, September 21, 2020..... 349
The Wyoming Department of Transportation, September 28, 2020. 351
MODERNIZING THE ENDANGERED SPECIES ACT: LEGISLATIVE HEARING ON S. 4589,
THE ENDANGERED SPECIES ACT AMENDMENTS OF 2020
----------
WEDNESDAY, SEPTEMBER 23, 2020
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The Committee, met, pursuant to notice, at 10:06 a.m. in
room 406, Dirksen Senate Office Building, Hon. John Barrasso
(Chairman of the Committee) presiding.
Present: Senators Barrasso, Carper, Inhofe, Capito, Cramer,
Braun, Rounds, Sullivan, Boozman, Ernst, Cardin, Gillibrand,
Booker, Duckworth, and Van Hollen.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Good morning. I call this hearing to
order.
Today, we will consider Senate Bill 4589, the Endangered
Species Act Amendments of 2020. I introduced this legislation
to modernize and to strengthen the Endangered Species Act. It
is the culmination of a collaboration with stakeholders from
across the political spectrum, and it began 4 years ago.
During my time as Chairman, we have held five different
hearings on how the Endangered Species Act needs to be reformed
so it works better for wildlife and for people. It is clear:
Legislation is needed to accomplish this goal.
It was my intention to introduce a bill with the support of
environmental and wildlife conservation organizations and a
bipartisan group of Senators. Our stakeholder feedback process
made clear that at least one provision in my bill is a non-
starter for those groups and for the Committee's minority. It
also made clear that the same provision is the top priority for
my home State of Wyoming.
The Endangered Species Act requires the Secretary of the
Interior to monitor a species for at least 5 years after the
species is fully recovered and delisted. My legislation would
delay the ability of a Federal court to overturn a delisting
rule during this 5 year monitoring program. It doesn't
eliminate anyone's rights to challenge a delisting rule in the
Federal court; it only delays such a lawsuit so States have an
opportunity to prove that they can successfully manage the
recovered species.
Under my legislation, a recovered species is still
protected during that 5 year post-delisting monitoring period.
They are still protected by State regulations and the State
management plan, and by the Secretary's authority to relist the
species if its condition deteriorates. These changes to the
Endangered Species Act are critical for Wyoming, for Montana,
for Idaho, and for other States.
This point was highlighted at a hearing this Committee held
earlier this month. The grizzly bear in the Greater Yellowstone
ecosystem is fully recovered. That is not just me saying it;
President Bush, President Obama, and President Trump all agree,
and each of those administrations have tried to delist the
species. Yet activist Federal judges have repeatedly intervened
to overturn these delisting rules.
The decades long commitment of time and resources by States
and stakeholders simply cannot continue if the good work to
recover the grizzly bear is ignored by activist courts. I
understand that this provision ensures some stakeholders won't
support my bill; however, it is an issue that needs to be
addressed if we are to improve the Endangered Species Act.
Many other concepts and provisions in the bill have
received positive feedback and support from environmental and
wildlife conservation groups. They include the parts of the
bill that reauthorize the Endangered Species Act for the first
time in almost 30 years, substantially increasing the funding
authorization, and focusing money on recovery of species,
elevating the role of States in implementing the act, ensuring
non-governmental stakeholders have a clearer voice in recovery
and in implementing planning, providing regulatory certainty to
incentivize investment in conservation and recovery activities,
and prioritizing resources for species that are most in need.
Stakeholders have also sought a significant additional
funding stream for wildlife conservation. I continue to be open
to exploring this possibility. The funding levels must be
reasonable, justified, and paid for. They must also be part of
a bill that modernizes the Endangered Species Act.
Since the Endangered Species Act was signed into law, fewer
than 3 percent of listed species have been recovered and
delisted. This is a failure, not a success. We must do more
than just list species and leave them on life support. We need
to see them recovered and delisted. The Endangered Species Act
Amendments of 2020 will go a long way to achieving this goal.
I want to thank all of the stakeholders who participated in
bringing the legislation to this point, including those
stakeholders who currently cannot support the bill. I hope to
continue to work to find a viable pathway for this legislation
as we move into the 117th Congress.
I would now like to turn to Ranking Member Carper for his
opening statement.
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Thanks, Mr. Chairman. Good to see you.
Good to see all of our colleagues today, and I am happy to
welcome back Governor Gordon. We have almost a quorum here
today, with you and Governor Rounds, and others. We are happy
to see you, and we welcome our other witnesses, Jamie Rappaport
Clark, and Aliese Priddy.
As a recovering Governor and former State treasurer myself,
I appreciate the critical role that States play, as well as the
challenges that they may face in implementing many of our
Federal laws, and that includes the Endangered Species Act. We
gather here today to consider legislation that would make
significant changes to the Endangered Species Act, one of our
Nation's most popular environmental statutes at a time when our
world is facing dramatic decline in biodiversity.
Last week, in fact, the United Nations released a report
warning us that humanity is at a crossroads. Climate change
fueled by harmful emissions, rapid industrial growth, and
deforestation are destroying or seriously disrupting ecosystems
throughout our planet.
As rising sea temperatures acidify the ocean, bleaching
coral reefs in the process, plastic pollution is overwhelming
marine life in large parts of our ocean.
As severe heat and longer droughts create drier conditions,
animals and birds cannot escape the catastrophic wildfires that
engulf many of our forests.
The steep decline in biodiversity is not just dangerous in
theory; biodiversity is the variety of life on Earth. Its
imbalance endangers humans, too, fueling the spread of invasive
species and zoonotic disease. Addressing this biodiversity
crisis is all the more important as our country mourns the loss
of more than 200,000 Americans to COVID-19, a zoonotic disease.
Fortunately, the Endangered Species Act is one of our
Nation's best tools to support, improve, and protect
biodiversity. How, you might ask? Well, let's consider my own
home State of Delaware.
The First State enjoys an effective partnership with the
U.S. Fish and Wildlife Service within the framework of the
existing Endangered Species Act. Through this partnership, the
act has helped recover species in our State, just in recent
years, such as the Delmarva fox squirrel and the iconic bald
eagle.
Delaware's Department of Natural Resources and
Environmental Control is currently collaborating with the U.S.
Fish and Wildlife Service to combat the spread of something
called white nose syndrome, a disease that has wiped out entire
populations of endangered bats in our State, and as we know
those bats serve a valued purpose.
Our Fish and Wildlife Service Northeast Region is also
working with landowners, with industry partners, with nonprofit
organizations, to prevent new Endangered Species Act listings
and to restore the Delaware River basin.
Meanwhile, people travel from around the world to visit us
in Delaware to see threatened and endangered species, most
notably, the red knots and piping plovers, two types of
migratory birds that find safe haven on our shores to fuel on
horseshoe crabs or nest on our beaches.
They fly all the way from the South Pole almost to the
North Pole, and they stop for lunch in Delaware. A lot of
people from around the world come and see them. If our visitors
today are lucky enough, some of them might even spot a North
Atlantic right whale or a sea turtle off of our shores.
I have heard from many of my constituents who are also
passionate about protecting species in their States, other
States. Delawareans certainly support improving species
conservation outcomes, but they overwhelmingly believe that
Congress can do that by helping to address funding shortfalls
at both the State and the Federal level.
In fact, I would say that most, if not all the witnesses
who have testified at our many wildlife hearings that our
Committee has held, during the past two sessions of Congress,
they seem to agree that States and Federal agencies lack
sufficient wildlife conservation resources.
Let me just say that this is not entirely a Federal burden.
It is not entirely a State or local burden; this is a shared
responsibility. We are one of those who need to share our fair
share.
As some of you will recall, one of Wyoming's former
Governors, Dave Freudenthal, cochaired of the Blue Ribbon
Committee, I believe it was in 2014, on how best to sustain
America's diverse fish and wildlife resources. That panel, as
some of you will recall, that panel which included State
leaders, industry, and conservation organizations, determined 4
years ago, in 2016, that a new funding model for State wildlife
management is necessary. Yet the legislation before us today
does not prioritize funding.
While I do support reauthorizing the Endangered Species
Act, doing so does not constitute a complete or meaningful
funding strategy. Reauthorization also does not guarantee
funding increases for Federal agencies, nor does it provide
additional funding to States. Instead, the legislation before
us today proposes changes to the Endangered Species Act that
raise heartfelt concerns for those of us in Delaware and
beyond.
For one, it attempts to shift responsibilities for recovery
and other species management decision to States, without
providing additional funding for States to fulfill those
expanded roles. This is particularly troubling, even, I think,
counter-intuitive, because species typically only require
Endangered Species Act protection when State management has
failed.
At the same time, the legislation before us also expands
States' roles by creating more steps to add the Endangered
Species Act implementation process, which could unintentionally
create more, not less, bureaucratic red tape.
Most concerning of all, however, the legislation includes a
sweeping judicial review prohibition that limits the public's
opportunity to challenge delisting decisions that may not be
supported by the best available science or otherwise may not be
fully compliant with the law.
I believe that most of our colleagues know that I tend to
be someone who tries to understand where my colleagues are
coming from, especially when it comes to issues of importance
to their States. I think our Chairman is like that as well, and
I think most of us on this Committee are, too.
But over the course of the last two Congresses, I have
learned how and why Delaware's experience and perspective is
vastly different from some other States', including Wyoming, on
this particular issue. But having said that, I still struggle
to fully understand how this legislation would support species
recovery or serve the American public, in Delaware or in most
other States. While I believe there are areas of bipartisan
agreement on how to better protect and conserve species, sadly,
I am afraid they are not clearly reflected in the legislation
that we are considering today.
With that said though, I still look forward to our
discussion today. I am hopeful that the result will be a return
to bipartisan policy, making one that considers the views of
all our States and stakeholders, based upon shared principles
and priorities. This Committee is capable of doing that; in
fact, under the leadership of our Chairman and the support of
Democrat and Republican members of our Committee, we do it
regularly, and I am proud to say, as recently as this month.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you very much, Senator Carper.
We are delighted to have two panels today; each member of
the Committee will have an opportunity to question one or both
members, either a 5 minute round of questions with either
panel, or 3 minutes with both.
On the first panel, we are going to hear from Hon. Mark
Gordon, who is Governor of Wyoming. On the second panel, we
will hear from Leisa Priddy, who is the owner and operator of
the JB Ranch, and Jamie Rappaport Clark, who is President and
Chief Executive Officer of Defenders of Wildlife, and she will
be joining us remotely from Leesburg, Virginia, today.
I want to remind the witnesses that your full written
testimony will, of course, be made part of the official hearing
record today, so I would ask that you please keep your
statements to 5 minutes so we will have plenty of time for
questions. I know we do have a roll call vote on the floor of
the Senate a little later this morning.
First, I would like to introduce Wyoming Governor Mark
Gordon, who has been serving as Governor since January 2019.
Governor Gordon grew up on a ranch outside of Kaycee, Wyoming.
He worked there after graduating from college. He then started
his own ranch, as well as several successful outdoor recreation
and tourism businesses in both Buffalo and Sheridan, Wyoming.
Today, Governor Gordon and his wife Jennie own and operate
the Merlin Ranch east of Buffalo, which has been recognized by
the Society for Range Management with the Excellence in Ranch
Stewardship award.
Prior to his election as Governor, he served as Wyoming's
State treasurer from 2012 to 2019. Governor Gordon's efforts to
improve the State's financial portfolio resulted in Wyoming
being ranked No. 1 in the country for transparency.
Governor Gordon's service to Wyoming does not stop there;
he has served in a variety of other positions, including as a
member of the boards of the Wyoming Wildlife and Natural
Resource Trust and Nature Conservancy in Wyoming, the Wyoming
Environmental Quality Council, and the Powder River
Conservation District in Johnson County, Wyoming.
I hope that Governor Gordon will tell us about some of his
experiences in Wyoming balancing the interests of citizens
while effectively conserving and recovering wildlife.
Governor Gordon, it is a great honor to welcome you again
as a witness before the Environment and Public Works Committee.
I want to thank you for traveling from Wyoming to Washington
today to be part of this hearing.
Governor Gordon, please proceed.
STATEMENT OF HON. MARK GORDON,
GOVERNOR, STATE OF WYOMING
Mr. Gordon. Thank you, Mr. Chairman, Ranking Member Carper,
and members of the Committee. When I last had a chance to be
before this Committee, we were a lot closer, but I thank you
very much for this opportunity to testify on Senate 4589,
Amendments to the Endangered Species Act.
I am the 33rd Governor of Wyoming and the third in
succession to support such a bill. Governor Freudenthal, that
Ranking Member Carper mentioned, as a Democrat and a friend, he
was the first. Governor Mead, a Republican, also a friend and
my immediate predecessor, both suggested improvements like
those contained in this bill.
Unlike them, I am not an attorney, though we all share a
love of our State and its remarkable wildlife, flora, and
fauna. I was remembering, as I came here yesterday, that a year
ago, I was with game and fish biologists as they were logging
and collaring a male grizzly bear that had gotten into some
trouble in Sunlight Basin. For some of you, Sunlight Basin is
familiar. It is a beautiful valley just east of Yellowstone
Park. The Clarks Fork runs through it, the same river where the
Nez Pierce, led by Chief Joseph, made good their escape from
pursuing armies.
This particular bear had gotten into trouble for killing a
horse in someone's pasture, and therefore, it needed to be
relocated. I remember that experience as being especially
meaningful, because back in the late 1970s and early 1980s, I
had worked as a citizen environmental leader to help recover
the bear after Yellowstone Park's dumps had closed as a tourist
attraction.
At the time, there were fewer than 150 bears in the area.
Not many bears, and for a couple of generations, their lives
were transformed immeasurably.
But they have subsequently learned new behaviors. I am a
rancher, one of nine who signed up in 2014 for the first
Candidate Conservation Agreements with assurances inside a tent
with Governor Mead and former Secretary of Interior, Sally
Jewell. It took place on a windy hill outside Pinedale,
Wyoming, and the ceremony represented the culmination of many
efforts between Wyoming Governors, landowners, industry, and
the Federal Government to find a strategy that would protect
the sage-grouse and enhance core sage-grouse habitat, because
that is essential to protecting the bird from extinction.
In turn, as we have learned more about this fascinating
bird, I have issued my own executive order recently to improve
on this approach, which began two administrations ago,
involving private landowners, government agencies, non-
governmental entities, industry, citizens, all with the common
aim of protecting the largest concentration of remaining grouse
habitat in the country.
It is working. Northeastern Wyoming sage-grouse populations
have improved of late, something that I can attest to from
seeing the birds in my own Hall Pasture over the course of the
past year.
I digress to point out my personal experience with the
Endangered Species Act from many sides of its implementation,
and while I must acknowledge that there are many aspects of the
act which can be problematic to private property at times,
misinterpret science, and at times be used improperly, it is
nonetheless, a well intentioned law with a laudable aim, an aim
which it has sometimes failed to accomplish.
Members of the Committee, I come to you today because I
believe the Endangered Species Act is broken, and there is no
scientific reason it shouldn't be fixed. This bill amends the
Endangered Species Act in necessary ways that are intended to
bring more transparency, better cooperation, and incentive, and
that most key element of empirical science, the ability to test
a hypothesis, correct for undesirable outcomes, and chart a
clear course to species recovery.
Wyoming provides a multitude of successful examples from
species recovery to preventing species from being listed in the
first place. Unfortunately, Wyoming also has a long history of
being hamstrung with paying for species management, yet being
obliged to defer to Federal Government on decisions about that
management. This is particularly vexing when species have fully
recovered, yet remain listed because of legal horseplay and
judicial jousting.
Rather than focusing on actual results, courts are asked to
speculate on what ifs that lead to a vicious cycle. On the side
of those charged with finding solutions, they face unending
expense and never ending challenges, while well meaning
gadflies take advantage of a golden goose that lavishes court
costs and legal fees and provides a fund raising cash cow.
Neither the species nor affected parties find much relief in
that recipe.
This is not how the act was supposed to work. Wyoming is
home to several lightning rod species, species like the
carnivores that command national and international attention.
The gray wolf and the grizzly bear have a marquee value that is
mesmerizing. Perversely, some organizations who set forth to do
good work found the fundraising appeal of these stars
irresistible.
While dire threat once underscored urgency, now the work to
resolve these issues falls to more routine issues of rising in
areas where large carnivores come into conflict with humans,
domestic livestock, and big game. That process can seem more
mundane, taking up the cudgel that the Endangered Species Act
has become to impose the will of the Federal agency often to
the detriment of affected parties seems to be more compelling.
Let me mention a few examples of why the ESA needs fixing.
The gray wolf was reintroduced in Wyoming, despite objections
throughout the State. After five lawsuits and 15 years, the
wolf was finally delisted.
Scientific research and rigorous study proved to us that
the wolf has reached the recovery thresholds that had been set
for it for 10 years before that finally happened. Today, under
our management, the population is thriving and expanding, well
above federally required population objectives.
Another successful recovery, by all accounts, is that of
the Greater Yellowstone grizzly bear. It ranks as one of the
most significant conservation success stories in North America,
and I will tell you why. When a retired judge wakes up to find
grizzlies on his back porch in downtown Cody, 52 miles from
Yellowstone Park, or even further on, 47 miles away in Cowley,
Wyoming, a farmer's corn maze needs to be shut down last year
because grizzlies are in it, it is pretty evident bears are
expanding and thriving too, well beyond government objectives.
But this example of recovery is also an example of the
act's reluctance to delist. We know more about the grizzly bear
than any other wildlife species on the face of the Earth
because we have studied it extensively since 1975. In all that
time, we have seen methodologies and technologies improve. Our
ability to estimate populations, migration, migration dynamics,
behavior, and so on has evolved even as challenges facing the
bear have also emerged.
Wyoming is proud to have paid for and taken an active role
in grizzly bear recovery and management for over four decades.
Wyoming hunters and anglers financed the $50 million investment
in grizzly bear recovery.
When I started working on environmental issues back in
1979, the population was estimated to be around 136 bears. They
were in peril, no question about it.
Now, the most conservative estimates run between 700 bears
on the low side and as many as 1,200. The population is
recovered to a point where it is the Wyoming people who have
changed the way they work, live, make their livings, and
recreate in bear country. More human-bear interaction means
there are more bears doing more things that involve people.
These incidents, some tragic, provide further proof that the
bear has recovered, and management must evolve beyond its
initial objectives.
Despite the species being fully recovered for 20 years by
every milestone that has been set for it for over those 40
years, the bear remains listed, not because there is some novel
or unaccounted for threat, not because there is some scientific
concern over the population's viability; it remains listed
because twice, Federal courts have rejected meticulously
crafted U.S. Fish and Wildlife rules. In both cases, the court
delved into complex and sometimes unsettled scientific findings
as well as policy decisions of the Fish and Wildlife Service,
looking for what ifs to scuttle the delisting.
The courts seemed to ignore the findings and conclusions of
grizzly bear experts in favor of ruling in a way that simply
reaffirms a status quo. Perhaps it should come as no surprise
or coincidence that five of the six lawsuits challenging the
most recent 2018 grizzly bear delisting rule were filed in the
same District Court, a court where previous eco-activist backed
suits had found success. That is what we apparently do these
days: Shop for judges favorable to one's point of view,
regardless of law or evidence.
Wyoming spends around $2 million annually to manage grizzly
bears. That is the State's money, not Federal reimbursement.
Grizzlies are federally protected species, yet the State of
Wyoming bears much of that cost. An obvious question is, why
are we unable to manage the bears when we should be shouldering
so much of the cost?
For these reasons and many others, I support the bill
before you today. These amendments will align the act with its
original intent to protect imperiled species, recover them, and
remove them from the threatened or endangered species list.
My predecessor, Governor Mead, opined before this Committee
a few years ago about better ways to serve listed species and
get them to what should be the goal of the ESA: Delisting. His
suggestions were supported and crafted by the bipartisan
Western Governors Association. They are sound.
To my view, the largest barrier to delisting and returning
the management of fully recovered species to the States and
Tribes is litigation. Not litigation based on whether a species
is recovered, but litigation aimed at finding technicalities in
how the United States Fish and Wildlife Service promulgated the
rules in the first place.
Thus, I believe, this bill's proposed delay of judicial
review during post-delisting monitoring is essential to its
success. This provision will not harm species conservation.
Rather, it will provide States and Tribes a reasonable period
of time to show whether their management plans work. This
approach properly comports with the scientific method.
In any case, this bill still provides substantial
safeguards, allowing for greater Federal involvement should
that be deemed necessary, including emergency relisting. There
is a safety valve. Giving States an incentive to implement
State management plans will work. Keeping the big stick usually
used to hit States over the head via litigation at a reasonable
distance will incentivize State led conservation efforts.
Wyoming has invested in conservation for listed species,
given the face of multiple legal challenges. We have shown our
commitment and our ability to find success with the Wyoming
toad, the black-footed ferret. We are proud of that heritage,
and yet public support of this type of investment could wane
with the continued frustration that has come at the hands of
pickers of nits.
Critics of amending the act may say that States don't want
to conserve at risk species, or that States lack capacity and
expertise. Nothing could be further from the truth. The
majority of wildlife in our Nation is managed and managed well
by State and Tribal governments. The Public Trust Doctrine,
outlined in the North American Model of Wildlife Conservation,
is the bedrock for wildlife conservation in our country.
It is also worth recognizing the substantial contributions
made by private landowners, ranchers, and farmers across our
Nation to wildlife conservation. To have those efforts
overturned by litigation early in process is a great deterrent
to cooperation.
Further considerations, including takings, are not
insignificant, and they also deserve a fair hearing. This bill
provides a thoughtful way to address these complex issues.
The current bill significantly improves on this bedrock act
by encouraging State and Tribal involvement throughout the ESA
process. It provides requirements for the Secretary to notify
Governors when an ESA petition is filed. It provides allowances
for State agencies to lead recovery teams and to take
significant roles in recovery planning and implementation. It
provides Governors and Tribal leaders the opportunity to weigh
in on a listing decision before it is too late.
These are critical steps, recognizing the value of local
wildlife managers and what they bring to conservation and
recovery of imperiled species. Most importantly, it provides an
early entry for State and Tribal governments, as well as
citizens and those affected, to help define what recovery looks
like.
Almost 30 percent of the species listed under the ESA have
no recovery plan. A problem. How can a State, Federal, or
Tribal Government meet the intent of the act and help recover
imperiled species if they don't know how a recovery will be
defined?
Senator Barrasso. Governor, I am so grateful for your
passion, I know we have a number of Senators that want to get
to ask specific questions, so if you could wrap up so we could
get to those?
Mr. Gordon. Yes. Thank you, Mr. Chairman, forgive me for my
excessive time. I very much appreciate this.
I do want to make one last note, which is that I think the
funding that this bill brings is extraordinary, and will be
very helpful to State efforts. As I mentioned in my testimony,
the big challenge here is that the State bears the burdens of
the cost.
[The prepared statement of Mr. Gordon follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Well, we are so grateful for your
thorough, your excellent presentation.
We do have a couple of questions. We have a number of
Senators here who would like to ask.
I want to start by talking about the greater State
involvement that comes in the bill that you were just referring
to. It gives States the opportunities to lead the recovery and
the implementation teams, and I know you support those
provisions.
Can you explain how a listed species could actually benefit
from increased State involvement in the recovery process?
Because you have had, now, 41 years of involvement in this
area, which is truly one of your passions.
Mr. Gordon. Right. Mr. Chairman, thank you very much,
members of the Committee. State involvement, State science, is
often the best. It is certainly the most ground truthed; it is
certainly most current. It would inform decisions. That State
connection and the ability for States to be involved, private
landowners to be involved, is absolutely essential for the
success.
I think the example you see in that, Mr. Chairman, is
Wyoming's own efforts with the sage-grouse in the core areas.
Senator Barrasso. When you take a look at what the bill
does, which it delays that court's review of a rule delisting
for at least 5 years during that post-delisting monitoring
period, how does this specific provision help with effective
State management of a recovered species?
Mr. Gordon. Mr. Chairman, thank you for that question. As I
mentioned in my testimony, one of the principal things about
the scientific method is that you have to test what the
hypothesis is, correct for mistakes that might have been made.
In the case of this particular provision, it allows the
States to make a plan. It actually demands that they make a
plan, and that they then monitor that plan over time and see if
it works or if it doesn't work. What we have currently, where
everything is litigated almost immediately, we never get off
the ground. So I think that is essential.
Senator Barrasso. So my final question, based on what you
just said about the science based decisionmaking, do you
believe there is anything in this bill that we are introducing
today, the Endangered Species Act Amendments of 2020, that
would in any way erode the existing authorities of the
Endangered Species Act in terms of the Secretaries of Interior,
or Commerce, or Agriculture, or anything at all?
Mr. Gordon. Mr. Chairman, in my review of the bill, and I
read it again last night, it seemed that you specifically have
pointed out that that erosion cannot occur.
Senator Barrasso. Thank you, Governor.
Senator Carper.
Senator Carper. Thanks.
Again, Governor Gordon, welcome. Great to see you again.
As you know, I am especially interested in your views on
funding, given your roles not just as Governor, but as State
treasurer, a role I once was privileged to fill in Delaware.
Your testimony talks about the importance of, you mentioned
right at the end of your statement, you mentioned the
importance of, I quote you, ``a predictable long term funding
source.'' A predictable long term funding source for the
Endangered Species Act.
The legislation before us today, as best that I can tell,
does not provide this, either for States, or for Federal
agencies. We have a saying in Delaware, all hat, but no cattle.
Actually, that is not a Delaware saying, but it is a great
saying.
But when I think of the authorization process, we authorize
programs. That is a two step process: We authorize them, and
then later on, we come back, and we appropriate money to make
good. The authorization could just be an empty promise.
But I have a question: Do you agree that our Committee
should consider a funding strategy beyond just the
reauthorization of the Endangered Species Act for Federal
agencies and for States? And if you would, just elaborate on
that, please.
Thank you.
Mr. Gordon. Thank you, Mr. Chairman, Ranking Member Carper.
I think your question is a very good one. Reauthorization does,
it appears to me, in this bill, also include some
appropriations. To the degree that those can be improved, I
certainly would not----
Senator Carper. Let me just interrupt. I don't think that
is the case. We can have another sidebar conversation. If that
were the case, I wouldn't be focusing on it so much, but go
right ahead.
Mr. Gordon. OK. Thank you, Ranking Member.
In my view, the Federal Government really does need to bear
more of that burden, and I am going to encourage this Committee
to look at that carefully. Wyoming, and out of that $2 million
we spend, we get about a $100,000 from the Federal Government
to meet that obligation. So that is the differential: $2
million that the State spends, $100,000 that the Federal
Government spends.
Senator Carper. All right, thank you. Your testimony
highlights Wyoming's work to help recover the black-footed
ferret. I understand that voluntary conservation agreements
between landowners, and I think with the U.S. Fish and Wildlife
Service, have been a critical tool for recovering this specie.
These voluntary conservation agreements provide regulatory
certainty, and they support recovery for one of our Nation's
most endangered mammals. It is a real win-win situation.
However, the development and implementation of these
voluntary conservation agreements and subsequent reintroduction
of black-footed ferrets on private lands requires funding.
Again, do you agree that Federal agencies could do more to
promote voluntary conservation activities for black-footed
ferrets and for species across the country, if they had some
additional financial resources?
Mr. Gordon. Mr. Chairman, Ranking Member Carper, I do agree
that that would help. I also think the certainty that this bill
provides also helps in promoting more cooperation between
landowners.
Senator Carper. All right, thanks. I have another question;
I will just probably end up having to ask it for the record.
You mentioned the roles the courts that are playing in review
of these matters. It is my fourth term in the U.S. Senate, and
in my first term, I was one of the lead Democrats on class
action reform. In my second term, I was one of the lead
Democrats on asbestos litigation reform.
I have never been a big fan of venue shopping. I have never
been a big fan of venue shopping, which you raised. In
testimony we had just in the last couple of weeks, right here
in this room, we talked about the decision by a, I think, a
District Court decision with respect to this issue, and then we
talked about a three judge panel, a unanimous three judge
panel, I think this was Ninth District Circuit Court of
Appeals.
At the end of the hearing, I asked our witnesses, what kind
of remedy was prescribed by the courts. And three items were
mentioned. Two were fairly straightforward; one was more
difficult, and I would just ask you to take a look at, and we
will provide for you, the three remedies that were heard
literally in this room a couple weeks ago, and ask you just to
get back to us, as to which you think have merit or actually
are doable. Thank you.
And again, it is very good to see you.
I am going to slip out; I have another hearing going on in
the Committee on Homeland Security and Government Affairs with
the Secretary of the Department. I will be back, but I may miss
you when I return, so thank you so much for joining us, again.
Senator Barrasso. Thank you.
I think we have Senator Capito now, joining us remotely.
Senator Capito. Yes. Thank you, Mr. Chairman, and thank you
Governor, for being in our Committee today. I am sorry I am not
there in person, but I am actually quarantining, so I am doing
what the CDC is telling me to do.
In mentioning some of the cooperative workload on this that
the State and the Federal Government do, I was wondering, and
you might have mentioned this, and I might have missed it in
your statement, is there an example where an innovative habitat
or species conservation plan that has been put forward first by
Wyoming itself as a State plan, that it might be used as an
example of ways that a State can really bring about the
solutions granularly and help the Fish and Wildlife Service and
others meet these challenges?
You mentioned the sage-grouse earlier, I didn't know it
that was an example of that.
Mr. Gordon. Thank you, Mr. Chairman, Ranking Member Carper,
and Senator Capito. The sage-grouse, in the core area strategy,
first developed under Governor Freudenthal and then improved
under Governors Mead, and I hope I have played a small role, I
think is exactly the right example. It was a State led process
that established a way to bring groups together to really
discuss what are the core area habitat needs, and then to work
with landowners and agencies to devise a program that has
worked and has stood as an example for other Western States.
Senator Capito. With that being said, then, as you move
forward with that plan, when trying to collaborate with Fish
and Wildlife, was that a contentious kind of role, or was it a
total collaboration, the State leading the way with the Fish
and Wildlife being an integral part of that?
Mr. Gordon. Mr. Chairman, Senator Capito, it is a working
group. We have a sage-grouse implementation team with a number
of stakeholders that are on it. They work through process, and
I won't say that it is all, that it is always a happy
discussion. Sometimes there are serious conversations about,
for instance, in the latest addition, how do we work to expand
sage-grouse habitat, even if it is outside of core areas.
Sometimes, that doesn't go as happily as other discussions do,
but it always work through it.
Senator Capito. Great. Thank you. I know that you mentioned
in your statement, the sue and settle lawsuits that are very
prevalent in this area. We have an issue with the Guyandotte
crayfish over in my State of West Virginia, which is really
impacting the ability of a part of my State to try to recover,
and you could certainly identify with, being from Wyoming, from
a major downturn in thermal coal. So we are finding ourselves
at odds with this.
How are you meeting that challenge in Wyoming? It is
frustrating for us in West Virginia; it has to be frustrating
for you in Wyoming as well, and sometimes I think when we are
trying to present our different sides, we are not actually
talking to one another, we are sort of talking above or at one
another.
How have you worked on the issues of the economic
development issues as they are met with the sue and settle
lawsuits?
Mr. Gordon. Thank you, Mr. Chairman, Senator Capito, I
would say that is the reason we are talking as much as we are
about the grizzly bear. The grizzly bear is an animal that we
have twice before worked on rules that could delist. As I said,
the population has grown substantially, and we are frustrated
at every turn by the same venue and what if scenarios.
That is the reason I think this bill is so essential,
because it allows for us to test whether the hypothesis works,
and it provides the safeguards and safety valves that allow for
a relisting should that be absolutely essential.
Senator Capito. Thank you. Thank you, Governor.
Thank you, Mr. Chairman.
Senator Barrasso. Well, thank you so very much, Senator
Capito. We appreciate your participation from West Virginia.
Senator Cramer.
Senator Cramer. Thank you, Mr. Chairman, and thank you,
Governor, for being here and for your very good testimony.
I wanted to say amen several times, but instead, I will
just focus a question or two on what I thought were a couple of
the highlights, frankly, highlights of the legislation.
I have never been a Governor, although there have been
several in the room today already. But I was a State regulator,
and one of my greatest frustrations in regulating at the State
level Federal rules and laws, was when the Federal Government
would try to impose its mediocrity on North Dakota's
excellence.
You have spoken to the challenge, and probably the greatest
inhibitor to success, and I deem success, at least, in part to
getting species delisted. We are looking at over 2,300 species
and plants on the list today. Since 1973 only 60 have gotten
off the list, so my measure of success, I think, would be
delisting.
I think one of the highlights of the legislation for me,
and you pointed this out, is, of course, the prohibition on
litigation or Federal lawsuits or lawsuits in Federal court
during that State period, that period of after the delisting,
or after success, in my view, of that State monitoring period.
I find that really critical. I find it as common sense.
But the argument against it, of course, is that, oh, we
can't do that because, you know, the citizens have to have a
venue. I think back to my days as a North Dakota regulator, and
Wyoming is very similar to North Dakota in lots of ways other
than the mountains and the grizzly bears, and I think, gee, who
do the citizens have the greatest access to, if not their State
legislators, their State Governors, their State regulators?
I would think it is similar in Wyoming. Do you have pretty
good access to good people, whether they be landowners,
conservationists? In most cases, they are the same people, the
same stakeholder groups.
Mr. Gordon. Mr. Chairman, Senator Cramer, I think you speak
exactly correctly. I think citizens have the best access to
State agencies. I think that State agencies have people on the
ground that work directly with landowners, and I think that the
State involvement, that this particular bill promotes is
absolutely essential to any working solution.
The point you made about the Federal Government's sometimes
one size fits all challenges just don't make sense on the
ground. So I think having States involved, citizens involved
early, makes for a good dialogue that is absolutely essential.
Then again, you know, from the suing kind of provisions,
what is essential is that we talk about what has happened, not
necessarily what might happen or what you didn't consider when
you were thinking about that. We can continually, the perfect,
sometimes, is the enemy of the good, and the good thing that
this Endangered Species Act did was to promote the delisting of
animals.
Senator Cramer. For sure, and of course, it also encourages
voluntary participation in that effort. Wyoming, like North
Dakota, has a lot of volunteers, again, landowners,
environmentalists, professionals, and users of the land, in the
case of Federal lands where there is a lot of multiple use.
They all care about the same thing, and I think, want the same
outcome. But I would think they would find it rather
demoralizing to continually work to get something, to get a
critter delisted, but only to have their success punished in
the courts.
Mr. Gordon. Mr. Chairman, Senator Cramer, I think it is
demoralizing, talking to some of my landowner neighbors,
absolutely, for a number of reasons.
Senator Cramer. Well, thank you again for appearing. Thanks
for your care about this and for your excellent testimony.
I might just say, Mr. Chairman, that a lot of people are
wondering, what is going to be the main issue when you talk to
President Trump's next nominee to the Supreme Court of the
United States? Mine is going to be this issue. That is, what is
the proper role of States with our Federal Government in our
Federalist system, because I think we have lost track of it for
decades, and that erosion needs to be stopped, and I think,
reversed. I think the Endangered Species Act is one of many
examples, so thank you.
Senator Barrasso. Thank you so much, Senator Cramer.
Senator Braun.
Senator Braun. Thank you, Mr. Chairman.
Taking off on what Senator Cramer just said, I share the
same concerns that interplay between State and Federal
Governments, especially when it comes to how we pay for things.
That was interesting, hearing your discussion earlier, where
you thought the Federal Government needed to do more. I think
that is something that everyone that comes here to testify or
to discuss anything, probably has that point of view.
I think the even larger challenge is that this place is
probably going to be in a position out of necessity to do less
over time, and I know that can be discouraging and
disappointing to many. So I think that when it comes to what
are the responsibilities between States and the Federal
Government, it is also going to be viewed in the context of how
we have evolved over time to where, keep in mind, we borrow 23
percent, we borrow 23 percent of everything we spend here on an
annual basis.
So for anyone listening, and especially people that come
here to testify, I would hedge my bets a little bit on things
that you want to make sure that get done in your own particular
States, even when it does sound so imbalanced in what you
cited.
Pleasure to be speaking with someone, too, that comes from
the business world. I am freshly out of it. Some of the
differences between being here and running something, where you
got that accountability, I think, probably, is more what a
Governor has to contend with.
I want to make sure, because I have one particular instance
here in my home State, I want to describe it to you briefly and
then see if you think that there would be remedies within the
amendments that we are kind of talking about that would help
this local concern be heard over all the other stuff that is
involved with the Endangered Species.
In my State, there is a place called Lake Freeman. Since
2012, following low waters, that was a drought year, in the
Tippecanoe River, the habitat for protected, freshwater
mussels, the U.S. Fish and Wildlife Service has ordered the
local electric company, which also has its own regulatory body,
to release water through its dam out of Lake Freeman to raise
the river's water level to protect six species of mussels. Of
course, I am for that. I am a conservationist. I believe we
have to do whatever we can to keep endangered species from
becoming extinct.
In this case, it has had a devastating effect on the local
economy, because you can't put a boat into the water. The water
level is 3 to 5 feet below the dock levels.
Do you feel comfortable with what we are doing here that a
grievance and a concern like that would be aired through the
amendments we are proposing?
Mr. Gordon. Mr. Chairman, Senator Braun, I do believe that
this act provides better access by engaging local citizens and
local governments earlier in the process to be able to find a
solution that can best balance the needs of both the species
and the economic interests that are there.
I do believe that this act is a vast improvement. Is it
perfect? Probably not, but on the other hand, I do believe that
that is the best place for that solution to be found, at the
local level.
Senator Braun. Well, thank you, that is good to hear, and I
think that will be kind of good for the folks at Lake Freeman
to hear as well.
I think, as we move forward to try to have that delicate
balance between State and Federal obligations and who pays for
it, we need to make sure, at the grassroots level, that anyone
impacted is heard, as well. Thank you so much.
Thank you, Mr. Chairman.
Senator Barrasso. Well, thank you.
Thank you, Governor, for being here. We appreciate your
being here to testify. We have a second panel, and you are more
than welcome to stay and listen to them.
There may be members of the Committee that supply to you
questions for the record, and we would ask that you try to
reply and get those answers back to us in 2 weeks.
So thank you, Governor. We are so grateful for your coming
to DC to visit today to share your thoughts, your experience of
your 41 years of commitment to this topic from Wyoming with all
the members of the Senate and the Committee.
Thank you, Governor.
Mr. Gordon. Thank you, Mr. Chairman, and members of the
Committee.
Senator Barrasso. Now, I would like to welcome our second
panel. Two members will be here, one directly, and one
remotely, Ms. Priddy and Ms. Clark.
I would like to welcome both of you here, Ms. Priddy in
person, Ms. Clark, from Virginia.
Ms. Priddy, I would like to ask you first to proceed with
your testimony. Welcome to the Committee.
STATEMENT OF ALIESE PRIDDY,
OWNER AND OPERATOR, JB RANCH
Ms. Priddy. Thank you.
Good morning Chairman Barrasso, Ranking Member Carper, and
members of the Committee. I am Leisa Priddy, a native
Floridian, and third generation cattle rancher.
As a rancher, I am also a conservationist, managing and
improving landscapes for my livestock as well as habitat for a
wide variety of species, including those protected under the
Endangered Species Act.
I come to this Committee today to offer testimony that is
representative of the varied hats I have worn throughout my
career, which give me a unique perspective on the ESA and how
to make species management and recovery efforts more
successful. I hold a bachelor's degree in finance and also in
environmental studies.
In addition to running my ranch in southern Florida, I have
served in a variety of wildlife and conservation leadership
positions. I was appointed by then-Governor Rick Scott to serve
a 6 year term on the Florida Fish and Wildlife Conservation
Commission, and have served on the Ave Maria Stewardship
Community District Board since its inception in 2005.
My testimony today draws from each of my experiences that
have allowed me to work with environmental groups, wildlife
managers, ranchers, and government officials, who all want the
same thing: A good outcome and brighter future for species,
especially those that need additional protection to thrive.
My testimony today will focus on two distinct themes:
Empowering and including non-Federal expertise in ESA
implementation discussions, and whether the ESA as currently
implemented is meeting all of its objectives, and if not, why.
Mr. Chairman, as a former Fish and Wildlife Conservation
Commissioner in a State that currently has more than 130
species protected under the Endangered Species Act, I
appreciate that your bill recognizes the incredible investments
States like Florida have made in wildlife conservation and
recovery efforts.
Each year, States spend billions of dollars managing
species and ensuring their lands are filled with robust
populations of the plants and animals that call them home. I
saw this first hand as a commissioner through the efforts made
to recover panthers and manatees, and I know that Florida is
not alone in that commitment.
States are uniquely positioned to coordinate resources from
private landowners, ranchers, industries, non-governmental
organizations, and regional authorities to ensure the best
outcomes. It is for that reason I fully support your proposal
to allow States to lead recovery teams during the ESA process.
States have primacy over wildlife management, meaning they
bear sole responsibility for ensuring laws, science, and
partnerships are in place to have robust populations. In cases
where a species needs additional assistance, States' knowledge,
authorities, and partnerships are invaluable. Allowing States
to demonstrate that leadership recognizes their broad capacity
to manage and provide certainty to ranchers like me, who have
invested in conservation activities.
Further, States work with ranchers and other groups to
engage in voluntary conservation efforts, even outside the ESA
context. These voluntary efforts provide predictability for
ranchers, land managers, and regulatory authorities alike, and
are often the basis for longstanding partnerships. Your
proposal to allow voluntary conservation efforts to be factored
into ESA determinations is a recognition of the value of these
voluntary efforts, and allows for the ESA determination process
to be more accurate.
I always try to make well informed decisions, and the Fish
and Wildlife Service is no different. Allowing them to
recognize these voluntary conservation agreements is just
common sense, and will make these agreements more attractive in
future recovery efforts.
I come to this Committee today knowing that discussions of
changes to the ESA are often met with significant controversy.
We hear phrases like ``gutting the ESA,'' but most of that
emotional signaling is based in fear.
We are all concerned about what would happen if the ESA
weren't effective, but I think in large part, we are already
there. The ESA has achieved some significant and popular
recovery efforts. The bald eagle and the manatee are just two
examples. But thousands more species have languished on the
list due to lack of attention and a system that just hasn't
worked for them.
In your bill, you recognize several challenges that have
made the ESA less effective over time: A system that doesn't
account for local and State expertise, an inefficient way to
prioritize resources to the most imperiled species, and a
system that makes it almost impossible for the Fish and
Wildlife Service to have the ability to declare victory when
recovery is achieved.
I have some additional comments, Mr. Chairman, but I
understand that my time is out, so I will turn it back to you,
thank you.
[The prepared statement of Ms. Priddy follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Well, thank you so very much. We
appreciate your being here and traveling from Florida.
I note that our head of Game and Fish in Wyoming is here,
Brian Nesvik, who is a former game warden. You probably have a
lot of overlap, and have a chance to maybe visit after the
hearing, but that you so much for being here with us.
We are now going to turn and go remotely to Leesburg,
Virginia, where we are being joined by Jamie Rappaport Clark,
who is the President and Chief Executive Officer of Defenders
of Wildlife.
Thanks so much for being with us today.
STATEMENT OF JAMIE RAPPAPORT CLARK,
PRESIDENT AND CEO, DEFENDERS OF WILDLIFE
Ms. Clark. Thank you.
Good morning, Mr. Chairman, Ranking Member Carper, and
members of the Committee.
My name is Jamie Rappaport Clark, and I am the President
and CEO of Defenders of Wildlife, a national non-profit
conservation organization dedicated to the protection of all
native plants and animals in their natural communities. We
represent more than 1.8 million members and supporters across
the United States.
Thank you for inviting me to speak about my experiences
conserving imperiled species under the Endangered Species Act.
My testimony draws from almost four decades of experience in
wildlife conservation in the Federal Government, the nonprofit
and private sectors, including service as Director of the U.S.
Fish and Wildlife Service under President Bill Clinton.
Before I discuss the legislation being considered here
today, it is important to first recognize that we are in the
midst of an alarming and catastrophic biodiversity crisis. A
biodiversity crisis is not a far away problem; it is unfolding
here and now in the United States. Study after study has shown
that this is a pivotal moment for wildlife, and ultimately, for
humanity.
A recent global assessment on the status of biodiversity
and ecosystem services found that as many as 1 million species
are facing extinction. Just last week, the United Nations
Convention on Biological Diversity released a sobering report
warning that humanity is at a crossroads, and the extinction
crisis is intensifying.
We are losing species faster than ever before in human
history, and this devastating loss is even further exacerbated
by the impacts of climate change. Our actions now will
determine if our country will endure and our planet will
sustain our priceless natural legacy for generations to come.
If we don't act now, science tells us the consequences will be
dire.
The United States can and should lead the way by
establishing a national strategy focused on stemming the loss
of biodiversity, which includes fully funding the Endangered
Species Act. The legislation being considered today would take
us in the wrong direction at this critical moment for our
planet.
The ESA is our Nation's flagship law for conserving and
recovering imperiled species, and is the cornerstone of our
commitment to preserving life on Earth, and it is a strong
foundation on which to build a national commitment to
conserving biodiversity.
Since its enactment more than 45 years ago, it has been
remarkably effective at protecting our Nation's biodiversity.
Almost every listed species is still with us today, and
hundreds are on the path to recovery because of the protections
provided by the Endangered Species Act. However, woeful
underfunding and inconsistent implementation have rendered it
less effective than Congress envisioned, or any of us expected.
The bill before the Committee today does not strengthen the
ability of the ESA to conserve imperiled species. Instead, it
significantly rewrites key portions of the law to prioritize
politics over science.
It inappropriately shifts responsibility for key
implementation decisions from the Federal Government to the
States, many of which do not have sufficient resources or the
legal mechanisms in place to take the lead in conserving listed
species.
It places significant new administrative burdens on already
overburdened agencies, both Federal and State, and it turns the
current process for listing and recovering threatened and
endangered species into a far lengthier and less transparent
process that precludes public and judicial review of key
decisions.
These proposed changes to our Nation's most effective law
for protecting species from the finality of extinction will
result in significant harm to at risk species and their
habitats, undermine collaborative conservation efforts, and
blatantly ignore what scientists are telling us over and over
in unified voices, further compounding the environmental
challenges we are facing today. Preserving our wildlife in
their habitat is a responsibility that transcends human
lifetimes.
Our future depends on the actions we take now. Turning the
tide on biodiversity loss and addressing climate change will
not be easy, but our path forward as a society depends on it.
At this critical moment for the biological health of our
planet, the Nation must renew its commitment to conserving
imperiled species and their habitats, not undercut the laws
that protect them.
Regrettably, the legislation being considered today would
weaken the ESA and make it harder to achieve the progress we
must make to confront the disturbing rate of extinction our
planet is facing and address the devastating loss of nature
that we know is real.
Thank you, Mr. Chairman, for the opportunity to testify,
and I am happy to respond to any questions.
[The prepared statement of Ms. Clark follows:]
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Senator Barrasso. Well, thank you so very much for joining
us today remotely. We appreciate it.
We do have a number of Senators who are looking forward to
asking questions, and let me start with Senator Sullivan.
Senator Sullivan. Thank you, Mr. Chairman. I think that ESA
reform is long overdue, and I think that it is an issue that,
when I was Attorney General for the great State of Alaska, it
actually had bipartisan support among all the AGs, particularly
the western States' Attorneys General, just because we
recognize, both Democrats and Republicans, that although the
law has a lot of important aspects to it, there has been a lot
of abuse to it as well.
Ms. Priddy, I have some questions for you. One, I
appreciated your focus on the ability of States. My State has a
really, really professional and outstanding Department of Fish
and Game and some of the foremost experts on the species in
Alaska, some of the foremost experts on these species in the
world. They also understand how imperative it is to be able to
balance protection of the species, which we all want, but also
economic opportunity for our citizens and jobs.
Let me ask a couple of questions. One, can you talk a
little bit more about where you believe the States' role should
be, particularly given the expertise that a lot of States bring
to these issues and the understanding of the economic balance
that needs to be struck, versus Federal agencies that often
don't have that deep kind of understanding?
Ms. Priddy. Well, I think that States have a very unique
perspective on everything that goes on in their State, both
economically and for conservation efforts. There are other
agencies within the State, also, that can contribute to that,
especially in Florida. We have our own Department of
Agriculture, we have different environmental commissions that
overlook everything. So I see them working together as a group,
and being able to address those situations that are unique to
their State.
Senator Sullivan. Let me ask a follow up. Some of my
colleagues on the other side of the aisle who particularly want
all the power in the Federal Government, say well, you can't
really trust the States. They don't really care about the
species or the people. They don't understand the ``science.'' A
lot of times, they use the word science.
Trust me, during the Obama administration, I saw the abuse
of science in my State of Alaska all the time, all the time.
Don't even get me going on that one.
But how about that argument that we often hear, well, you
can't really trust the States? Isn't it actually the opposite,
the States are on the ground with the people, with the
expertise, knowing the species that are unique to the
ecosystems of Florida or Alaska?
Isn't it better to trust the States? Isn't that a more
effective way to effectuate effective ESA policy?
Ms. Priddy. Well, I would certainly take exception to the
position that the Federal Government is better, in a better
position to manage these endangered species. In fact, having
been a Florida Fish and Wildlife Conservation Commissioner, it
is really almost offensive.
Senator Sullivan. Yes. I agree with that.
Ms. Priddy. I have seen first hand how engaged our State
has been. Of course, speaking for Florida only, we were able to
keep our black bear from being considered for listing because
of the exceptional efforts that were made, and I also see how
our State on a regular basis provides greater funding than the
Federal Government does to species that are already on the
list.
Senator Sullivan. Let me follow up on that. I agree exactly
with what you just said.
Again, I think there is a lot of area for bipartisan
reform. Let me give you one example.
Some of the more extreme radical groups, Center for
Biological Diversity, for example. They have undertaken this,
and trust me, they try to shut down my State all the time, kill
jobs, the whole bit.
They have undertaken these examples of multiple listing
petitions, where they literally look to list 50, 60, 70, 80.
Most people, even my colleagues on the other side of the aisle
believe that is the kind of abuse that has taken place under
the ESA that needs to be reformed. I think even the Obama
administration agreed with that, in general.
Do you agree with that, those kinds of abuses? Are there
other abuses to the Federal law right now? We all want to make
sure we have robust species, protect our environment, protect
our species. But what are some of the abuses that you see in
the current ESA that we could address that you think would be
important?
Ms. Priddy. Absolutely, I don't agree that litigation is
the way to go. I think it ties up resources that could be used
better elsewhere, working together. Because the goal that
everybody wants is the removing or delisting of the species
from the list.
I think that the bill having that 5 year period after a
species is delisted would be an exceptional opportunity for the
States to show what they can actually do. So I think that is a
key component of the bill that would definitely help the
States.
Senator Sullivan. Great, thank you.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you very much, Senator Sullivan.
Senator Cardin.
Senator Cardin. Thank you, Mr. Chairman, and I thank all of
our witnesses.
First, I would like to ask unanimous consent to submit
letters signed by the Southern Maryland Audubon Society, the
Audubon Naturalist Society of Chevy Chase, Maryland, and Born
Free USA, an international wildlife conservation and animal
protection organization, headquartered in Silver Spring,
Maryland, expressing oppositions to the legislation that was
drafted on behalf of the thousands of members of these
organization, for the record.
Senator Barrasso. Without objection.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Mr. Chairman, I just really want to agree
with my friend from Alaska. We want to work in a bipartisan
manner. The Endangered Species Act has been a critically
important law for the environment, and both Democrats and
Republicans agree on it. So reform should be done together.
I take issue with the Chairman's bill not because of the
sincerity of it, but because I just don't think it deals with
the fundamental problems that we have in the Endangered Species
Act, as Senator Carper has pointed out.
In my State, I know that we were successful in dealing with
the Delmarva fox squirrel. We got it delisted. But we did that
through management, which requires resources. If we are looking
at reform, we need to find out how we can get adequate
resources to have the right type of management so that we can,
in fact, have more success stories.
Over 50 species have been successfully recovered and no
longer need Federal protection. That is exactly what the
Endangered Species Act is about, is to set up systems so that
we can, ultimately, remove the species from the endangered
species list.
I want to ask Jamie Clark a question, if I might, and that
is, in my State of Maryland and in our region, the Chesapeake
Bay is, of course, one of our great environmental challenges,
and all the stakeholders in our State and our region come
together, Democrats, Republicans, the State government, the
local governments, the landowners, the developers, the local
governments and wastewater management, our farmers, in an
effort to save the Chesapeake Bay.
Part of that is to make sure we have the species that give
for a healthy bay. I would just like to get your view as a
matter of priority in dealing with the Endangered Species Act,
what impact will a change in judicial review have on our
efforts versus additional resources that we need in order to
deal with the species protections?
Ms. Clark. Thank you, Senator. Well, first of all, the
Chesapeake Bay is a fabulous example of an ecosystem that has,
what, five States, multiple jurisdictions coming together to
conserve a pretty spectacular ecosystem. It is managed by this
national overarching authority of the Endangered Species Act,
and one of the most important pieces of legislation to guide
recovery of the bay and all of the attendant tributaries and
land around that system.
Since the Chesapeake Bay spans five States and numerous
endangered species, this bill could introduce all kinds of
confusion as to whose [indiscernible]. Without the national
overarching Federal involvement and Federal stewardship that is
governed by the Endangered Species Act today, there is going to
be a complete breakdown, or could be a complete breakdown, over
who has authority to make decisions and how those decisions are
made without the overarching national imperative.
Judicial review, the whole issue behind the litigation and
so much of the debate on litigation today is very much tied to
high profile litigation on high profile species. I get that.
But the citizen suit provisions in the Endangered Species Act,
as well as other laws, really are just there to help hold
agencies accountable. I remember that clearly from my time in
government, for sure. They hold agencies accountable to uphold
the law and allow citizens that engagement.
Citizens deserve and should have a role in holding agencies
in our government accountable to help Congress ensure that the
laws that they enact [indiscernible] appropriately. The
majority of the litigation brought by the environmental
community is about deadlines. That is completely tied to
inadequate resources, and frankly, the majority of litigation
on the ESA is brought by industry and property owners than by
conservation groups.
So we can debate the issue of litigation, but it is a check
and balance, and it is essential to holding our decisionmakers
accountable for upholding the law.
Senator Cardin. Let me just make one correction: there are
six States in the Chesapeake Bay.
Ms. Clark. Oh, OK, sorry.
Senator Cardin. I wouldn't want to leave any of our States
out. Second, let me just underscore the point that you made in
that the Chesapeake Bay Program is basically from the States
coming together. It is a State initiated program, as the
Endangered Species Act, we want the States to be actively
engaged.
Ms. Clark. Absolutely.
Senator Cardin. But you need to have an umpire here. You
need to have some cohesiveness here, so that everybody does
what is right. That is why we have the Federal partnership on
the Chesapeake Bay, as we need to be able to enforce our
endangered species laws sometimes when States aren't doing what
they should be doing on management.
Thank you, Mr. Chairman. I appreciate this hearing.
Senator Barrasso. Thank you, Senator Cardin.
Ms. Priddy, if I were to just ask you, the bill that we are
talking about today seeks to promote regulatory certainty, and
it does that by encouraging stakeholders to enter into
conservation agreements and to invest in conservation efforts.
We heard from Governor Gordon a number of the things that
are being done in Wyoming. This includes ensuring that such
agreements and efforts are formally considered when deciding
whether or not to list a species under the Endangered Species
Act.
So I would like to ask you, the bill also provides
increased funding to support proactive, voluntary conservation
activities undertaken by private landowners. You found yourself
in that situation. How will these provisions further motivate
landowners and ranchers to engage in voluntary conservation of
the land?
Ms. Priddy. Well, ranchers are business people, and
business people like certainty, as much as oftentimes there
isn't as much as we would like to have. I think that the bill,
in considering some of these efforts to be good
conservationists, would allow us some more of that certainty to
take into consideration while we are doing our business
planning.
I know myself, we have a conservation easement on our
property. It is an agricultural conservation easement, but we
were willing to put that property aside in perpetuity, knowing
that that property can never be developed. So it gives the
public certainty, and it gives us as landowners certainty.
It is probably not a surprise that whenever ranchers are
told, we are from the Federal Government and we are here to
help you, they might meet with some skepticism. So anytime we
can have especially Federal regulatory certainty, it is
helpful.
Another effort that we are involved in is habitat
conservation plan for landowners in our area, which, again,
working with the U.S. Fish and Wildlife Service will give you
that certainty. One of the problems with seeking that HCP is
the length of time that it takes. I think that that is a
reflection on the resources that are limited within the Federal
Government that have to be spread so thin.
Senator Barrasso. Let me ask you one other question. In
2018, we had testimony before this Committee by Nick Wiley, who
is the former--I think you know--Executive Director of the
Florida Fish and Wildlife Conservation Commission. He stated in
that testimony, he said, ``Current provisions and
interpretations of the Endangered Species Act,'' he said,
``still result in significant roadblocks, limiting,'' he said,
``our ability to participate as a full, jurisdictional
partner.''
So, he cited black bears, manatees, as examples where
Florida should have been more closely involved as a State. So
how would this legislation improve States' abilities to
participate in the listing and delisting of species? Why would
that be good for conservation?
Ms. Priddy. Well, I think Florida has so many great
examples of species that the State has dedicated tremendous
resources, folks on the ground, financial resources.
Oftentimes, it is far in excess of what the Federal Government
is able to dedicate to the recovery of that particular species,
the manatee being a great example. I truly don't think that the
manatee would have recovered like it has unless it had the
support of Florida.
The bear, as I mentioned before, we were actually able to
keep from being delisted because of efforts that Floridians and
the FWC put forth to take the steps and do the research that
was necessary to keep it off the list. It is a recovery story
that any State would be happy to have.
Senator Barrasso. Thank you. Thank you for that answer.
I would like to now turn to Senator Booker.
Senator Booker. Thank you, Mr. Chairman, and Senator
Carper, as well.
I want to start off by saying that the Endangered Species
Act, and I hope we can all agree, it has been really successful
in a sense that 99 percent of all the wildlife under its
protection have been saved from extinction, 99 percent of a
success rate.
And while the huge task of recovering a species from the
brink of extinction is often a decades long endeavor, the
majority of species that have been listed under the ESA are
recovering within the timeframes that were projected.
But let's recognize, though, just how dire of a global
crisis we are in. We are in one of the handful, going back to
the dinosaurs, one of the handful of global extinction crises.
It is estimated right now that one in six species are
threatened with extinction in this century alone, one in six.
According to a report recently released by the World Wildlife
Fund, it is estimated that the global populations of fish,
birds, mammals, amphibians, and reptiles declined by 68 percent
between 1970 and today.
It is incredible. It really means that we have lost more
than two-thirds of all wildlife in the last 50 years. Species
are going extinct right now thousands of times faster than
natural extinction rates.
These are staggering, tragic numbers that we all have to
recognize for the sake of humanity, because this is not just a
crisis for wildlife; destruction of habitat, and loss of
biodiversity is a threat to humanity; it is a threat to all of
us. Because we rely upon nature for food, shelter, medicine,
and so much more.
Scientists are telling us that if we want to prevent
another pandemic like the coronavirus, for example, from
happening, we need to stop destroying forests and other
ecosystems. They are directly related to the spread of such
global pandemics.
Yet right now, today, in the United States, we are losing,
on average, a football field's worth of natural resources, of
natural areas to development every 30 seconds. Every 30
seconds, a football field's worth of natural areas are being
lost to development.
Given the crisis we are facing, I believe that this bill we
are considering today is actually a step in the wrong
direction. Rather than focusing on ways we can increase our
conservation efforts and increase our funding for protection
and to protect species at risk, this bill moves us away from
the use of the best available science and would delay and
restrict judicial review.
This is not a choice between jobs and our economy and
protecting our natural species and wildlife. It is actually
something that we can do both. In fact, if we look ahead more
than just 2 years or 4 years or 60 years and election cycles
and look decades into the future, taking action now will
actually save tremendous economic opportunity and well being in
future generations.
What I would like to do with the short remainder of my
time, about 2 minutes, is ask Ms. Clark, to give you the
remainder of my time, just to expand upon the comments you made
in your opening statement about this crisis we are facing, this
global extinction event that we are in, and what natural
biodiversity strategies might address the crisis that we are
in.
Ms. Clark. Thank you, Senator. Well, you did a fabulous job
teeing it up, so thank you for that. I will just amplify on
your comments.
We have 1 million species at risk of extinction, it is
huge, huge from every taxonomic group. Seventy-five percent of
land and 66 percent of rain habitats are already significantly
modified. Populations of wildlife are dramatically reduced
worldwide, and certainly here in the United States.
You mentioned the Living Planet Index that came out just a
few weeks ago, very sobering news for our world. Coral reefs
are now half their historic size, and they are essential to the
health of our marine environment. All signs are pointing to
dramatic declines of biodiversity, and the looming
[indiscernible].
And you also mentioned, Senator, which I would agree with,
is that the effects of a biodiversity crisis extend to us. So
goes nature, so goes us. We have a half a billion dollars of
crops at risk every year because of the loss of pollinators.
That will collapse the food industry.
The zoonotic disease, you mentioned coronavirus, the COVID-
19 crisis, as well as many other diseases result from a decline
in clean, fresh water, and the list goes on and on.
But to the national biodiversity strategy you asked me
about, we know we are facing a biodiversity crisis. That is
unequivocally clear. Yet we haven't adopted a strategic vision
for just that crisis, and we need to. We can, and we should.
We need to set a policy for protecting our natural heritage
on a continental scale, and direct Federal agencies working
with States, Tribes, and other stakeholders to advance that
goal in a very systematic fashion.
Senator Barrasso. Ms. Clark, if I could just, because the
Senator turned over his remaining time, we have Senator
Gillibrand wanting to ask a question, so if you wouldn't mind,
I want to go to Senator Gillibrand.
Ms. Clark. Certainly.
Senator Barrasso. Senator Gillibrand, the floor is yours.
Is she not there?
Senator Duckworth, if you are standing by, if I could turn
to you first while we are trying to get Senator Gillibrand
connected.
Senator Duckworth.
Senator Duckworth. I am ready to go, Mr. Chairman.
Senator Barrasso. Thank you. Please proceed, thank you.
Senator Duckworth. Thank you so much. I would like to thank
both you and the Ranking Member for having today's hearing, and
also to Ms. Priddy and Ms. Clark, I want to thank you both for
joining us here today.
My first question has to do with the measuring of success
for the Endangered Species Act. My Republican colleagues often
point out that only 39 species have ever been delisted from the
Endangered Species Act after experiencing a population
recovery. However, a different measure puts the Endangered
Species Act in terms of how few species that have been listed
have gone extinct.
Ms. Clark, can you elaborate why this second measure, where
you look at how few of these species have been listed, have
actually gone extinct is a better picture of success for the
Endangered Species Act? Thank you.
Ms. Clark. Certainly, thank you, Senator. The Endangered
Species Act is a law of last resort. Species come onto the
Endangered Species Act and are protected by that statute only
after State and other local authorities and protections have
failed. So oftentimes, by the time a species is listed and
protected by the Federal Government, it is in pretty dire shape
and bumping up against extinction.
That typically happens after decades of decline, so we
shouldn't expect species to just flip and turn around. It is
not like flipping on a light switch when the Endangered Species
Act comes into its protective status.
What is remarkable about the number of species on the list
is how many of them have continued to sustain, knowing that we
got to them almost too late. The fact that so few have gone
extinct after being protected by the Endangered Species Act is
a remarkable measure of success.
The expectation that species would recover overnight, or
even quickly given the dire straits most are in by the time
they are protected by the law, is an inappropriate measure for
sure, and often affected by lack of funding that is invested to
allow those species to begin their recovery journey.
Senator Duckworth. Thank you. The Endangered Species Act
provides a critical framework, as you were saying, to protect
endangered and threatened species and their habitats. A study
in 2018, I understand, found that one-fourth of listed
endangered species lack final recovery plans. Of species that
do have plans half of them took more than 5 years to finalize
after a species was listed, and half of all recovery plans are
more than 20 years old.
In order to ensure that the Endangered Species Act can
provide meaningful protection to endangered and threatened
species, it needs secure and sufficient funding to make sure
that these plans can be completed, updated, and kept relevant,
and that the work of saving these species can be completed.
Can each member of the panel briefly speak to the role
funding plays in conserving these species? I would like to turn
over the remainder of my time to the panelists to answer this
question. Thank you.
Senator Barrasso. Thank you so very much, Senator, I
appreciate it.
Senator Duckworth. Thank you.
Ms. Priddy. I guess I will go ahead. This is Liesa Priddy.
To address that question, yes, I think that funding is
essential to being able to successfully recover these species.
But again, I feel that in many cases, it has been the States,
on their shoulders, to fund the efforts that are made for these
species' recovery. Often, the Federal funding just isn't there
to provide all the resources that are needed for each
individual species.
Ms. Clark. I would add that the Endangered Species Act has
been severely underfunded for decades, and that speaks to both
the State need, as well as the Federal need, so States
certainly need more resources, as does the Federal Government.
The most recent evaluation suggests that less than 25 percent
of the recovery funding that is needed, that scientists say is
needed for the species that are listed, has been provided at
either the Federal or the State level.
So this is pretty dire. We can't expect species to recover
without investment. The States are doing the best they can; the
Federal Government is doing the best it can. But this is
really, basically an issue about investment and whether or not
we are going to address this national commitment that, frankly,
is a rounding error of the budget that is deployed for a big
part of the government.
Senator Barrasso. Thank you so much, Senator Duckworth.
Senator Gillibrand, I know we have been having a little
trouble technically. Hopefully, you are able to join us now and
ask your questions. Thanks so much for your patience.
Senator Gillibrand. I am. Thank you so much, Mr. Chairman.
To Ms. Clark, I am concerned with provisions in this bill
that would significantly limit the ability for citizens to use
judicial review to hold decisionmakers accountable when a
species is delisted from the Endangered Species Act. The
proposed bill would not allow for judicial review for delisted
species until the completion of a monitoring period of at least
5 years.
If the species is delisted prematurely and loses ESA
protections, what kind of damage could occur to that species
over a 5 year timeframe?
Second, absent judicial review, what remedies would
citizens have to reverse a harmful agency decision before the
end of the monitoring period?
Last, would you agree that judicial review is important to
ensure accountability and national public trust in Endangered
Species Act decisions?
Ms. Clark. Certainly. I will try to tackle them in that
order, but they might blend.
The barring of judicial review for a decision to delist is
hugely troublesome because it completely eliminates the ability
to hold the government accountable for the decision that they
make. So if the science is saying something different, and the
community or citizens are not allowed to challenge it, the
species will continue to decline, continue to lose habitat, it
will be in worse shape than it was before delisting, and the
citizens are powerless to assert protections.
If there are politically motivated delistings, pretty
significant damage can occur. I find that incredibly
troublesome, that agencies can't be held accountable for
decisions to delist, but they can certainly be challenged if
they list. So that seems to be lopsided, because recovery is
guided by science, as is the need to list, which gets at your
other questions about the importance of judicial review.
The role of litigation is incredibly important, not to
undermine or to attack good decisions guided by science. But
the citizen suit provisions in this law as well as other
environmental laws help hold agencies accountable, help hold
them accountable to uphold the law and allow citizens to help
Congress ensure that the laws that they enact are doing what
they are supposed to.
So to blame litigation is the wrong victim or the wrong
target. This is a law that is guided by science. The species
tell us how they are doing, and if species are in decline, and
there is no way to stop it or no way to interject or intercede,
then, worst case scenario, we could watch something go extinct
with no ability to stop it.
Senator Gillibrand. Well, some of the most visible success
stories of the ESA relate to the recovery of iconic, endangered
birds, such as the bald eagle and brown pelican. The U.S. Fish
and Wildlife Service has also found that more than 46 million
people engage in birdwatching, and millions more benefit from
their continued presence in the communities and landscapes.
Unfortunately, recent studies, including from the Cornell Lab
of Ornithology, have found that bird populations are facing
long term declines and significant threats from climate change.
Can you talk a little bit about why the ESA has been
critical for recovering birds and why it will continue to be so
important going forward? Second, would you also elaborate more
broadly on the eco-tourism benefits of protecting other types
of threatened and endangered species?
Ms. Clark. Sure. Birds are amazing critters, and they are
often indicators for the health of our planet, for the health
of the ecosystem. While the bald eagle, the brown pelican, the
peregrine falcon have been unbelievable successes, all told,
North American bird populations have declined by nearly 3
billion birds since 1970. That is, I think, it is split, like,
a million birds from the forest systems, and a 53 percent
decline in grasslands. That is a devastating loss for such a
significant group of wildlife that Americans love and enjoy
routinely.
We know the success stories that you mentioned, for sure.
There are plenty of others that have been delisted due to
recovery, and ongoing efforts afforded by the Endangered
Species Act are bringing back some amazing birds, like the red
cockaded woodpecker, the piping plover, the golden-cheeked
warbler, the red knot. It is the Endangered Species Act that is
compelling those partnerships and those checks and balances to
protect these species from going off the cliff, and it is
significantly important.
Birds are so essential to the fabric of life and to the
circle, the ecosystem web, that without vibrant bird
populations, the entire ecosystems will be in trouble. Right
now, I think birds are heavily represented on the list, more
than 300 species listed today, and eco-tourism benefits a great
segue.
The last survey done by the Fish and Wildlife Service found
that more than 100 million Americans participated in fishing,
hunting, and other wildlife associated recreation and spend a
$156 billion while doing so. Eighty billion dollars of that was
expended by 86 million Americans who engage in wildlife
watching, especially birdwatching.
Especially at a time like this, in the middle of all this
pandemic and social distancing, birdwatching is escalating off
the charts. People want to get outdoors; they want to enjoy
nature, and they are willing to invest and pay for it. So
threatened and endangered species are particularly popular,
again among the birdwatchers, and they often, rare bird alerts,
pretty exciting in this country.
The ability to enjoy, whether you are feeding them or
counting them or adding them to your life list, the Endangered
Species Act has protected some of our most iconic birds, has
recovered many of our important birds, and is essential to how
we address the biodiversity challenge we are facing today.
Senator Gillibrand. Thank you.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Gillibrand.
Senator Van Hollen, thank you for your patience. We look
forward to hearing your questions.
Senator Van Hollen. Well, thank you, Mr. Chairman. Thank
you and the Ranking Member and to all our witnesses. Let me
just associate myself with remarks from some of my colleagues,
since a lot has already been said.
You all touched on the issue of funding for the Endangered
Species Act. I think, when the Western Governors got together,
that was a consensus position, a bipartisan view that we needed
more resources.
Ms. Clark, thank you for mentioning the issue of protecting
the migratory birds and other birds in Maryland. We have two
national wildlife refuges, Eastern Neck and Blackwater Wildlife
Refuge, and they both provide essential refuge for endangered
species.
Ms. Clark, let me just ask you about the current
relationship between the Fish and Wildlife Service and State
wildlife personnel, because during the course of these
hearings, it has been my impression from all the witnesses that
the Fish and Wildlife Service personnel do collaborate very
closely with the State personnel. I know that has been true in
Maryland.
In fact, we just passed a bipartisan bill, Senator Capito
and myself, called the WILD Act, supported, of course, by
Senator Cardin, who we heard from earlier, and others. It is
part of the ACE Act now, which would expand the relationship
between our State stakeholders and the Fish and Wildlife
Service. Can you just, based on your experience, can you
discuss the nature of that cooperation as it currently exists?
Ms. Clark. Yes, absolutely. The Fish and Wildlife Service
has always taken the relationship and the partnership with the
States very seriously. I know I did when I was director, and in
fact, Florida is a classic example. Nick Wiley is a good
friend. I have great respect for Nick and the work that he did
in Florida, and Florida continues to lead the way on a lot of
conservation initiatives that benefit species.
Much of the ESA's success is because the Service has
developed partnerships with the States to conserve and recover
threatened and endangered species. It is not a debate, and it
is not a contest. It takes both the Federal Government and the
States working together.
The State involvement is particularly important for some of
the reasons that were mentioned in the testimony by the
Governor and by my colleague from Florida, particularly
important given the knowledge base and their relationship with
private stakeholders within the borders.
It is important also to note that we talk about the
woefully inadequate funding for the States and for the Federal
Government to address imperiled species. The last study that
was done suggests that the States have only been able to
provide about 5 percent of the ESA funding that is necessary to
address the needs of the listed species today.
So the current Endangered Species Act is plenty flexible to
allow for that State contribution, to respect that State
contribution, and to partner with the States to ensure that
their roles are expanded and important. But we don't need to
risk the act's effectiveness or the national contribution or
the national oversight of the law to do that. There is plenty
of administrative flexibility.
I have never known, regardless of the political party,
there is not been a Fish and Wildlife Director, myself or since
me, that has not respected or enjoyed very close relationships
working with the States.
Senator Van Hollen. I appreciate that, and as I read the
proposed changes, it is hard for me to identify any other
Federal law where we are trying to establish a Federal backstop
here to protect endangered species where the Federal
Government, essentially, relinquishes more ultimate control
over the results.
In your experience and looking at the proposed draft, what
do you think might have happened in some of what we would
consider early success stories? For example, I know the State
of Alaska opposed adding polar bears to the threatened species
list. If this draft were in effect, this proposal, where do you
think we would see different outcomes than we have today?
Ms. Clark. First of all, Federal oversight through the
Endangered Species Act only comes into play when the States
have been unable to conserve species within their borders using
State means or State authorities. There is not one State today
that has a law at the State level equal to the Federal
Endangered Species Act. In fact, there are two States, Wyoming,
and West Virginia, that have no State protection or no State
statute protecting species.
Species like the polar bear would likely not have been
listed, and then potentially declined even more significantly
because the Federal Endangered Species Act is a national
commitment. The polar bear is of importance to the United
States, and so it allows the transcending or the blending of
the State oversight responsibilities and management of endemic
species within their borders to be balanced with the national
commitment to preserving biodiversity within this country. So
it is the blending of those responsibilities.
So I imagine, worst case scenario, there could be a lot of
political vetoing of species being added to the list because
the camera lens of the Federal Endangered Species Act
transcends State politics, and science guides those decisions,
and science dictates what species are at the brink of
extinction, and how they should be protected. That doesn't mean
that the Federal Government should not be working very closely
with the States and honoring and respecting State knowledge and
State engagement, but this is a Federal law with a national
oversight responsibility.
Senator Barrasso. Senator Van Hollen, Senator, I hope you
are driving to the vote, because they have just done the five
bells for the ending part of the vote, and I hope somebody else
is actually doing the driving.
Senator Carper has not yet asked his questions in this
round. Would you mind if I went to him at this point? Do you
have any last question?
Senator Van Hollen. No, I don't. Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Van Hollen.
Senator Carper.
Senator Carper. I would say to Senator Van Hollen, pedal to
the metal. Just kidding. Get on over here.
I would say to our witnesses, welcome, and thank you for
joining us today. Nice to see you.
As I mentioned, this would be a question for Jamie
Rappaport Clark. As I mentioned in my opening statement last
week, the United Nations Convention of Biological Diversity
released a report that highlights the severity of the global
biodiversity crisis and specifically, reports suggest that
addressing climate change is at the heart of stemming the
biodiversity decline.
My question would be, would you explain how recovery
actions under the Endangered Species Act can help support
species like those red knots we have been talking about, who
are threatened or endangered due to climate change?
Ms. Clark. Climate change is literally reshaping the
biodiversity of this country, whether it is affecting habitat
or shifting migratory patterns or causing species to adapt in
ways that we never would have expected, possible, or required
prior to watching the effects of climate, whether it is
increased wildfires, drought, increased temperatures.
The Endangered Species Act is aimed at recovering these
species that are protected by its authorities, and it allows
for the innovation of science and the partnership with
stakeholders focused on, let's talk about the red knot, focused
on the red knot's recovery using adaptive science, adaptive
understanding [indiscernible] and allows for the decisionmakers
and the folks that are involved in recovery of species like the
red knot to adjust and address the impacts of changing climate,
particularly along the coastlines, which is becoming
increasingly significant.
Without the protection and the overarching backstop of the
Endangered Species Act, climate and other drivers like habitat
loss, invasive species, and so on, would most certainly condemn
species to extinction with no kind of check and balance in
place.
Senator Carper. Thank you. One last quick question, if I
could. We have talked a good deal about funding today, and I am
more confident than ever that adequately resourcing State and
Federal agencies will dramatically improve Endangered Species
Act implementation. However, legislative solutions that have
been proposed in this Congress to provide wildlife funding seem
to be focused predominantly on providing funding to States.
As a former U.S. Fish and Wildlife Service Director, do you
have concerns whether legislative funding strategy that heavily
favors State funding, do you believe Congress should balance
the funding needs of both States and Federal agencies?
Go ahead, please, and I will ask you be fairly brief.
Ms. Clark. Yes. Sorry, I dropped my mouse and couldn't
unmute. I apologize.
This is not an either-or, and we keep setting this up as an
either-or. We know that funding to protect species on the brink
of extinction is woefully inadequate, and it requires for all
this energy pushed at States, which we would have to look at
where the money goes and how it is tracked and given to State
authorities.
The Federal agencies are in dire straits themselves, so
there has to be some balance. For all the investment in the
States there has to be significant investment in the Federal
agencies. That is beyond Fish and Wildlife Service and National
Marine Fisheries Service.
We have land management agencies like the Forest Service,
the Bureau of Land Management, the National Wildlife Refuge
System, that are managing and stewarding these lands for
biodiversity conservation, and greater investments need to made
there if we want to save and protect the species that occupy
our country.
Senator Carper. Thank you. Thank you for your responses.
Ms. Priddy, sorry I didn't get to ask a question of you as
well, but time just doesn't allow that.
Mr. Chairman, it has been a good hearing. I ask unanimous
consent to enter into the record letters and materials from
stakeholders expressing concerns for the Endangered Species Act
Amendments of 2020 and support for the Endangered Species Act.
This includes letters from the National Wildlife Federation,
Environmental Defense Fund, National Audubon Society, and
National Parks Conservationist Association, as well as other
national organizations, and I will also be including letters
from the Delaware Ornithological, yes, our own Ornithological
Society, Delaware Wildlands----
Senator Barrasso. You mean the birdwatchers?
Senator Carper. There you go.
Senator Barrasso. OK.
Senator Carper. Delaware Nature Society, Christian Council
of Delmarva, Department of Natural Resources and Environmental
Control Secretary Shawn Garvin, Delaware State Senator
Stephanie Hansen, and the American Birding Association, which
is headquartered in Delaware. Thank you.
Senator Barrasso. Without objection.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. At the same time, I would like to enter
into the record, over 100 stakeholders have submitted letters
in support of the Endangered Species Act Amendments of 2020.
These includes letters from the Wyoming Game and Fish
Department, Wyoming Stock Growers Association, Wyoming Farm
Bureau Federation, and the Wyoming Association of Conservation
Districts, other State wildlife agencies as well as local and
national conservation, sportsmen, agriculture, and governmental
interest have also written in support.
I ask unanimous consent to enter these letters of support
from stakeholders into the hearing record, and without
objection, it is so done.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. I want to thank all of our witnesses for
being part of the hearing today. The hearing record will remain
open for 2 weeks.
I want to thank the witnesses for their time, their
testimony today.
The hearing is adjourned.
[Whereupon, at 11:59 a.m., the hearing was adjourned.]